The impact of Brexit on health and safety

“They think it’s all over…it is now”?

Darren Smith, System Concepts’ Managing Director (Health and Safety), dons his football referee gear to adjudicate on the debate around the impact of Brexit on health and safety.

Firstly, apologies to Kenneth Wolstenholme for misquoting his famous words in the title of this article.

As we draw closer to the June 2016 UK referendum on EU membership, we wait with bated breath to see which side wins. With the match still in full swing, the final scoreline is far from clear, with neither the ‘in’ nor ‘out’ side scoring the knockout goal.

All over for health and safety?

So, for the sake of this article, let’s assume the ‘no’ side scores that knockout goal, and the country votes to leave the EU: is it all over for health and safety? Will future governments, freed from the requirement to transpose European directives, repeal the health and safety legislation with its roots in Europe? And could they even do so, if they wanted to?

When thinking about these questions, a couple of my own health and safety career experiences come to mind. The first involved a global client seconding staff from its UK offices to the Middle East. Staff seconded from the UK began to complain about the working conditions, saying the workplace and furniture weren’t up to the standards they were used to, and expressing concerns about issues such as fire safety and workplace ergonomics.

I suspect that this expectation that workplaces and working conditions meet the standards that employees have become accustomed to, will limit the political will to change our UK legislative environment too much. This in turn reminded me of Professor Löfstedt’s 2011 review, in which he concluded ‘in general, there is no case for radically altering current health and safety legislation. The regulations place responsibilities primarily on those who create the risks, recognising that they are best placed to decide how to control them and allowing them to do so in a proportionate manner’.

Vested interest in preserving the status quo?

My second recollection was of a conversation I had during this year’s FA cup final. A friend pointed out that I have a vested interest (given my work as a health and safety consultant) in preserving the status quo: and would logically vote for the UK to stay in the EU.

His perception was that the EU generates a torrent of burdensome health and safety regulation. To prove his point he Googled ‘crazy European health and safety legislation’, and was provided with 19,700 results, mostly headlines from UK newspapers. The typical format was, “How ‘crazy‘ new Health and Safety rules on ladders could add £1,000 to …” or “Bonkers EU bureaucrats spark crazy safety row over…”.

Now, to pick up on two of the words used, ‘torrent’ and ‘burdensome’. Personally, I don’t see a torrent (but then I have a vested interest!), though data to prove my point is scarce. A 2010 Parliamentary report suggested that from 1997 to 2009 6.8% of primary legislation (Statutes) and 14.1% of secondary legislation (Statutory Instruments) had a role in implementing EU obligations. At face value that doesn’t seem a great deal. What percentage of this was health and safety legislation, I don’t know.

Burdensome or world class regulatory environment?

In terms of the degree of EU regulation, Louise Stewart from the Federation of Small Businesses has cited REACH (Registration, Evaluation, Authorisation & restriction of Chemicals) and the Working Time Regulations (WTR) in this regard, on Radio Four’s Today programme. I suspect these were mentioned because of the complexity of REACH and the restrictiveness of the WTR, and I must stress, she didn’t comment on whether they were a good or bad thing.

I don’t see the UK regulatory environment for health and safety as being ‘red tape’. What I do see is a mature, logical, world class regulatory environment: while not without its faults, it provides structure and guidance for complying with the law.

The final whistle

My final point is that left in isolation, we may have arrived at the same point in health and safety regulation anyway. We have a long tradition of improving worker safety (the first Factories Act was introduced in 1802, 202 years before the modern European Union was founded in 2003).

The Health and Safety at Work Act places a duty on employers to control workplace risks. Those risks are the same with or without EU legislation. It seems to me to be fairly logical that we would have identified and legislated for those risks anyway.

So, if we would have arrived at the same point without EU intervention, and now we have EU regulation transposed into UK law, we have set an expectation that people will return home healthy and injury free from a day’s work, and that work and workplaces will meet certain conditions, it seems unlikely health and safety legislation will change.

They think it’s all over? It’s probably not.

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